How Should I Answer Questions on a Job Application if I’ve Been Arrested?

October 14, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s heartbreaking for me to hear current clients and folks who’d gone through some rough patches before be extremely excited about a potential job opportunity only to have the opportunity repeatedly crumble at the last minute over and over.

My Approach To Answering “How Should I Answer the Arrest Question”

First – I advise my clients they usually don’t have a duty to answer questions which aren’t asked depending on the job they’re applying for.  Many folks think they get brownie points for disclosing things they might not have to disclose – and in a perfect world this would be true.  My experience is the opposite, though.

It’s really important to read the question being asked, answer that question, and not answer questions which aren’t being asked.  It’s my experience many employers (and their lawyers) sometimes draft imprecise or clunky questions about previous arrests.  These are questions which might allow you to answer the questions honestly yet not require you to disclose your situation.

Remember your potential employer will also probably do a background check on you too.  You don’t want to get ‘too cute’ answering a question about your criminal history only to have the potential employer not hire you anyway.

Expunctions and Non-Disclosures are the best way to solve these problems.  An expunction allows you to deny the entire situation occurred in the vast majority of situations and a non-disclosure hides the affair from the public.

Quick Texas Guide to Background Check Questions

Have I Been Convicted?

Situations where the answer is “No”

  • If you were on deferred adjudication and successfully completed Deferred successfully for a felony or misdemeanor
  • If you are currently on deferred adjudication community supervision for either a felony or a misdemeanor
  • If your case is currently pending and you have yet to enter a plea
  • If you are waiting for your case to go to trial
  • If you went to trial and were found “not guilty”
  • If your case was dismissed for any reason

Situations where the answer is “Yes”

  • If you have ever plead guilty to a Federal offense
  • If you’ve gone to TDC or State Jail
  • If the judge found you guilty even if you were on probation

Have I Been Charged with an Offense?

“Charged” is a tricky word in these contexts.  What concerns me about the wording is I worry some may not agree with my interpretation or might not really understand what this term means.

To me, you are not “charged” with an offense unless or until the prosecuting authority (normally a District Attorney’s Office) files either an information against you in a misdemeanor or an indictment against you in a felony.

But we often hear on television or read in the newspaper someone was “arrested and charged with…..”  That’s usually not an accurate statement because normally the indictment or information follow an arrest weeks or months later.

So I do worry about folks who answer a background check question they have not been “charged” with an offense greater than a traffic ticket but who have been arrested – because the prospective employer might not understand the difference.

Overriding Advice

I always tell my clients – current and former – please call me with any questions about how to answer a specific question.

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.  Nothing in this article should be considered legal advice.


Deferred Adjudication

March 14, 2010

By Collin County Criminal Attorney Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Deferred adjudication in Texas is where a person charged with an offense pleads guilty or no contest and rather than being found guilty, the judge defers a finding of guilty while the accused is placed on what amounts to probation.

If the person successfully completes deferred, they are never “convicted” of the offense.  Most people are familiar with deferred because of a traffic offense or another class c misdemeanor.  Most class c deferred adjudications do make you eligible for expunction.  You are not eligible for expunction for class b misdemeanors or above in Texas, meaning your criminal record will never be completely erased.  You may be eligible for a petition for non-disclosure which is much different.

It is a dangerous, dangerous, assumption for anyone to make that if they plead guilty and accept deferred that the case merely vanishes or goes away.  Here is an interesting web site about deferred adjudication.  I’m not personally familiar with this group, but they seem to have some interesting information and statistics about deferred.

I’m not always convinced deferred is a terrible thing, but sometimes deferred can even be the devil’s candy… meaning that it sounds very tempting but it only begins your nightmare.

If you violate deferred, then you’re subject to punishment for the entire punishment range.  What this means, is that even though you get deferred on a state jail felony (that has a maximum punishment of 2 years jail — as an example), you may at first just have to report to a probation officer and do probation — but if you violate your probation — you can’t go back and fight the underlying case AND you are still subject to doing up to the entire 2 years in jail.

The federal government may treat a Texas deferred as a conviction.  Also, there are many Texas statutes and laws which simply don’t give you any benefit above and beyond a conviction.  Just as a small example, where a juvenile gets multiple dui deferred adjudications, they can later be enhanced as if they were convictions.  There are plenty of other criminal statutes  in Texas that treat deferred like a conviction.

If you’re about to accept deferred adjudication in a Texas Court, you should make sure to specifically know exactly what it is that you’re getting into by speaking with your

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice, you should always consult an attorney.


What is an Expunction in Texas?

February 7, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

A criminal arrest record can be like the legal equivalent of cancer.  It can cost you a job, a promotion at work, or countless other opportunities.  The damage is done when someone hears about the arrest.  Most aren’t interested in details that you were acquitted or the charges were dropped.

An expunction is the legal equivalent of curing the cancer that is a criminal arrest.  A state district judge orders the records stemming from a criminal arrest destroyed.  This includes records which were part of the arrest or that reference the arrest such as court records, the district attorney’s file, and even transcripts of the trial.  When people refer to having something “taken off” their record, an expunction is generally what they mean.  This also means that the state’s agencies can’t give information about your these arrests to private companies who gather criminal data for distribution for private background checks.  Tex.C.Crim.P. § 55.03(2) even allows for a person with an expunction to “deny the occurrence of the arrest…” in certain circumstances.  The code has specific details you should be aware of for that provision.

What is unknown by most is qualifying for an expunction can be somewhat difficult.  Though expunctions can be highly complex in certain circumstances where (where multiple allegations stem from the same arrest for example) – most are cut and dry.  If prosecution against you has been barred as a general rule, you are probably entitled to an expunction.  Prosecution can be barred where you are acquitted by a judge or jury, where the statute of limitations has expired and the case hasn’t been filed, or if prosecution has been barred for some other reason.

It is a common misconception that getting deferred adjudication ‘magically’ drops the criminal arrest record on it’s own for any offense.  Deferred only entitles you to an expunction for (most) class “C” misdemeanors in Texas.  These are the lowest level of offense, which include traffic tickets and petty offenses ranging from minor in possession, possession of drug paraphernalia, and theft below $50 in value as examples.  Even though you weren’t taken to jail on a class “C” doesn’t mean there isn’t a record either!  An Expunction may still be necessary.

Deferred adjudication for offenses from class “B” misdemeanors and above may entitle you to apply for a petition for non-disclosure which generally limits who can know about your criminal case but is different from an expunction.

An expunction doesn’t happen on it’s own.  A state district judge must approve your petition for expunction.  This is a very technical process and is commonly handled by lawyers.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. This article is not intended to be specific legal advice.  Please consult an attorney for questions regarding this subject matter.